Com. v. Boisey, M.

J-S21040-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MARK THOMAS WARD BOISEY : No. 905 MDA 2021
Appeal from the Order Entered July 9, 2021
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0003408-2019
BEFORE: DUBOW, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JULY 28, 2022
The Commonwealth of Pennsylvania appeals1 from the July 9, 2021
order of the Court of Common Pleas of Cumberland County (trial court)
excluding testimony of four police officers from the trial of Mark Thomas Ward
Boisey (Boisey) as a sanction for a discovery violation. We reverse the order
and remand for further proceedings.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See Pa.R.A.P. 311(d) (“[I]n a criminal case, under the circumstances
provided by law, the Commonwealth may take an appeal as of right from an
order that does not end the entire case where the Commonwealth certifies in
the notice of appeal that the order will terminate or substantially handicap the
prosecution.”).
J-S21040-22
I.
The trial court summarized the facts and procedural history of this case
as follows:
[Boisey] was arrested on November 13, 2019. According to the
allegations, [he] was involved in a violent domestic dispute which
ended in a standoff with the police. Multiple shots were fired at
the responding officers during the standoff. The defendant was
charged with numerous offenses including criminal attempt to
[commit] homicide. He has remained incarcerated since his
arrest.
There were 3 continuances granted at the request of the Public
Defender. [Boisey] obtained private counsel in November of
2020. Private [c]ounsel received discovery from the Public
Defender which consisted of “numerous DVDs filled with
thousands of images, videos, and reports.” At the request of the
defendant, the matter was continued to January 2021. It was
continued yet again to the March term, and then to the May term.
On April 8, 2021, [Boisey] filed yet another request for a
continuance on the basis that he just received the results of a
gunshot residue test. While [his] hands were swabbed on the
night of his arrest, the Commonwealth had not even submitted
the sample for testing until March 22, 2021. We denied the
request for a continuance but precluded the Commonwealth from
presenting any evidence regarding the gunshot residue test. The
Commonwealth did not object.
The case was called for trial as scheduled on May 17, 2021. Before
jury selection began, defense counsel brought to our attention
that it had just received reports from the Cumberland County
Strategic Emergency Response Team (SERT). There had been
multiple requests for all police reports from both the [p]ublic
[d]efender and [p]rivate [c]ounsel during the many months this
case had been pending. The Commonwealth had led the defense
to believe that all police reports had been provided. We indicated
that we would preclude the SERT team members from testifying
to anything in their report. However, [d]efense [c]ounsel was
adamant that he wanted a continuance to reconsider the defense
strategy and to discuss the reports with the defendant. We
granted the continuance to the July term of court.
-2-
J-S21040-22
In light of the continuance, the Commonwealth asked us to
reconsider our rulings excluding testimony regarding matters
contained in the SERT reports as well as the gunshot residue test.
Since the defense now had more than two months before the trial
was scheduled, we reversed both rulings, indicating that all such
evidence could be presented.
The trial was scheduled to begin on July 12, 2021. In June,
[Boisey’s] counsel requested to withdraw his appearance so that
new defense counsel could take over. We indicated that we would
not allow the substitution if it would result in another delay. New
defense counsel agreed that he would commit the time and
resources necessary to try the case on time, which he did.
Yet again, on the eve of trial, the Commonwealth provided
additional police reports. They consisted of reports which had
been prepared shortly after the incident by the Lower Allen
Township Police officers referred to above. The Commonwealth
agreed that there was no excuse for the late discovery. [Boisey]
moved to exclude the testimony of those officers. The
Commonwealth indicated that it had no objection except as to
[O]fficer Rennie. It argued that since he had testified at the
preliminary hearing, he should be allowed to testify at trial.
Defense [c]ounsel placed on the record, in [c]hambers and under
seal, the ways in which the information contained in those reports
would prejudice his client. After hearing the reasons, we were
satisfied that it would require the defense to completely revise its
strategy just days before trial. Since there was no excuse for the
Commonwealth’s failure to have provided those reports, we
excluded the testimony.
Trial Court Opinion, 2/3/22, at 1-4 (citations omitted).
The Commonwealth filed a motion to reconsider the order only as to the
testimony of Officer Rennie. Because he had testified at the preliminary
hearing, the Commonwealth argued that there was no unfair surprise as to
the contents of his report. At argument on the motion to reconsider, the
Commonwealth expanded its request and argued that all four officers should
-3-
J-S21040-22
be permitted to testify at trial. It contended that it had not violated the rules
of discovery and, even if it had, a continuance attributed to the
Commonwealth would cure any prejudice. The trial court denied the motion
and the Commonwealth appealed. The trial court did not order it to file a
concise statement of issues complained of on appeal but filed an opinion in
support of its order pursuant to Pa. R.A.P. 1925(a).
II.
The Commonwealth raises two issues on appeal: whether the trial court
abused its discretion by precluding the officers’ testimony as a sanction for a
purported discovery violation, and whether the trial court erred in determining
that the reports constitute Brady2 material.3
A.
Pretrial discovery is governed by the Rules of Criminal Procedure, which
provide that before the parties engage in motions practice related to
discovery, they must “make a good faith effort to resolve all questions of
____________________________________________
2 Brady v. Maryland, 373 U.S. 83 (1963).
3 “Decisions involving discovery matters are within the sound discretion of the
trial court and will not be overturned absent an abuse of that discretion.”
Commonwealth v. Santos, 176 A.3d 877, 882 (Pa. Super. 2017) (citation
and quotation marks omitted). “An abuse of discretion is not merely an error
of judgment, but is rather the overriding or misapplication of the law, or the
exercise of judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of record.” Id.(citation and quotation marks omitted).
-4-
J-S21040-22
discovery, and to provide information required or requested under these rules
as to which there is no dispute.” Pa.R.Crim.P. 573(A). Rule 573 further
provides for discretionary discovery, on motion of the defendant, of “any other
evidence specifically identified by the defendant, provided the defendant can
additionally establish that its disclosure would be in the interests of justice.”
Pa.R.Crim.P. 573(B)(2)(iv).4 The defendant must show that the evidence is
material and that the request is reasonable. Pa.R.Crim.P. 573(B)(2).
Additionally,
If at any time during the course of the proceedings it is brought
to the attention of the court that a party has failed to comply with
this rule, the court may order such party to permit discovery or
inspection, may grant a continuance, or may prohibit such party
from introducing evidence not disclosed, other than testimony of
the defendant, or it may enter such other order as it deems just
under the circumstances.
Pa.R.Crim.P. 573(E).
Rule 573 imposes greater discovery obligations on the Commonwealth
than Brady, as it requires disclosure of more than just exculpatory and
material evidence. Commonwealth v. Maldonado, 173 A.3d 769 (Pa.
Super. 2017). However, “[t]he Commonwealth does not violate Rule 573
when it fails to disclose to the defense evidence that it does not possess and
____________________________________________
4 The Rule also provides for items of mandatory discovery. Pa.R.Crim.P.
573(B)(1). Neither the parties nor the trial court have claimed that the police
reports fall under any of these categories.
-5-
J-S21040-22
of which it is unaware.” Commonwealth v. Collins, 957 A.2d 237, 253 (Pa.
2008).
In contrast, there are three elements to establish a Brady violation:
“(1) the evidence at issue was favorable to the accused, either because it is
exculpatory or because it impeaches; (2) the prosecution has suppressed the
evidence, either willfully or inadvertently; and (3) the evidence was material,
meaning that prejudice must have ensued.” Commonwealth v. Bagnall,
235 A.3d 1075, 1084 n.10 (Pa. 2020) (citations omitted). Evidence is material
“if there is a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different.”
Commonwealth v. Lambert, 884 A.2d 848, 854 (Pa. 2005) (citations
omitted). The relevant question for the materiality analysis is “whether the
favorable evidence could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict.” Id. (citations
omitted). If the evidence at issue implicates Brady, “the Commonwealth is
charged with its possession even while it is exclusively in the custody of
police.” Collins, supra, at 253.
B.
We first turn to whether the Commonwealth violated Rule 573 by failing
to disclose police reports authored by the Lower Allen Township police when
it did not have the reports in its possession. It is undisputed that the discovery
process in this case proceeded informally. Boisey was represented by various
-6-
J-S21040-22
counsel throughout the pendency of the case but did not file a motion for
discovery. The certified record does not include any details regarding the
substance of his informal discovery request.5 Moreover, the record is clear
that the Commonwealth did not receive the Lower Allen Township police
reports until a few days before trial, after the trial court had already made
clear that it would not grant any further continuances, and it disclosed the
reports to Boisey immediately upon receiving them.
Under these circumstances, the trial court committed an error of law in
determining that the Commonwealth had violated its discovery obligations
____________________________________________
5 In its opinion, the trial court stated “[t]here had been multiple requests for
all police reports from both the [p]ublic [d]efender and [p]rivate [c]ounsel
during the many months this case had been pending.” Trial Court Opinion,
2/3/22, at 2. This factual finding is unsupported by the record. At the hearing
on Boisey’s motion to preclude the officers from testifying, defense counsel
explained that the public defender’s office had originally received voluminous
discovery in the case. It provided discovery and a cover letter describing the
contents to Boisey’s first retained private counsel on October 26, 2020. That
attorney provided the same information to current defense counsel. Counsel
explained that he asked the Commonwealth for the Lower Allen Township
Police Department reports in an email the week of the hearing and at their
meeting the night prior, and the Commonwealth did not have copies of the
reports at that time. The Commonwealth provided the reports to defense
counsel on the day of the hearing after receiving them for the first time. When
the trial court asked the prosecutor whether there had been prior requests for
police reports, she responded, “I would imagine so. I don’t remember
specifically.” Notes of Testimony, 7/9/21, at 3; see also id. at 2 (“I believe
that there were informal requests for reports. However, there was never any
specific request for the Lower Allen reports; otherwise, we would have done
exactly what happened in this case, where we immediately reached out to
Lower Allen, procured them and turned them over.”). There is no other
evidence of record regarding any other requests for discovery made by any
counsel during the pendency of the case.
-7-
J-S21040-22
under Rule 573. While the trial court’s frustration with the multiple
continuances in this case is understandable, Rule 573(E) authorizes sanctions
such as the exclusion of evidence only when “a party has failed to comply
with” the rule. Pa.R.Crim.P. 573(E); Maldonado, supra, at 774. Rule 573
explicitly provides that the Commonwealth’s obligation to disclose items of
discretionary discovery attaches on motion of the defendant, which did not
occur here. Compare Pa.R.Crim.P. 573(B)(2) (stating court may order
discretionary discovery “if the defendant files a motion for pretrial discovery”)
with Pa.R.Crim.P. 573(B)(1) (providing for mandatory discovery “on request
by the defendant” (emphasis added)).
Further, it is undisputed that the Commonwealth did not possess the
police reports at issue until July 2021 and it immediately disclosed them to
Boisey upon receipt. Because the Commonwealth was unaware of the reports
and did not have them in its possession, it had no duty under the Rule to
disclose them at any time prior. Collins, supra; see also Commonwealth
v. Long, 753 A.2d 272, 278 (Pa. Super. 2000) (finding no rule violation when
the prosecution disclosed videotape to defense immediately upon becoming
aware of it shortly before trial). Thus, the trial court erred in precluding the
officers’ testimony when the Commonwealth had not violated the Rule.6
____________________________________________
6Boisey focuses his argument on whether the trial court’s chosen sanction of
precluding the officers’ testimony was an abuse of discretion. See Boisey’s
Brief at 8-11 (citing Commonwealth v. Burke, 781 A.2d 1136 (Pa. 2001;
(Footnote Continued Next Page)
-8-
J-S21040-22
C.
Next, the Commonwealth argues that the trial court improperly excluded
the officers’ testimony pursuant to Brady when the police reports at issue
were not exculpatory or impeaching and no prejudice ensued. However, the
trial court does not appear to have relied on Brady as a basis for exclusion of
the police reports. The order precluding the evidence does not reference
Brady, and the single mention of Brady at the hearing was the trial court’s
acknowledgement that Boisey could potentially raise such a claim post-trial.
See Notes of Testimony, 7/8/21, at 4 (“I will grant whatever you want
excluded from that. If it contains Brady information that would lead to the
dismissal of the charges if he’s convicted, you can make that in a post-
sentence motion, and the Commonwealth will have to live with whatever those
consequences are.”). The trial court’s opinion only cites to Rule 573 and does
not contain any reasoning or cite any law related to Brady. Trial Court
Opinion, 2/3/22, at 4-7. Accordingly, this issue is not before us and we do
not address it further.7
____________________________________________
Commonwealth v. Smith, 955 A.2d 391 (Pa. Super. 2008);
Commonwealth v. Galloway, 771 A.2d 65 (Pa. Super. 2001)). Because the
Commonwealth did not violate Rule 573, we do not reach the question of
whether preclusion of the evidence was an appropriate remedy.
7 As the trial court implicitly acknowledged at the hearing, Brady would
provide Boisey with a potential claim for post-trial relief if the suppression of
exculpatory or impeachment evidence had an impact on the trial proceedings.
Lambert, supra (defining the materiality element of a successful Brady claim
(Footnote Continued Next Page)
-9-
J-S21040-22
Order reversed and case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/28/2022
____________________________________________
as requiring a reasonable probability that the outcome of the proceeding would
have been different). At this juncture in the proceedings, when Boisey has
not yet proceeded to trial, any litigation of a Brady claim would be premature
because the materiality of the evidence cannot be assessed.
- 10 -